A flawed ill-health retirement process will not, by itself, amount to direct disability discrimination or discrimination arising from disability.

Background

Mr Dunn worked as a prison inspector. He became ill with depression and a heart condition and, in November 2014, applied for ill-health early retirement. The process was poorly handled from the outset with various delays, all of which were acknowledged by his employer and for which they apologised to Mr Dunn. Part way through the process Mr Dunn raised a grievance. His heart condition worsened. Further delay ensued, and it was not until December 2015 that his application was granted. Unhappy about his treatment, Mr Dunn brought various claims for direct disability discrimination, discrimination arising from disability and harassment.

He had partial success in tribunal, it dismissed the harassment claim but upheld three of his 16 discrimination claims including direct discrimination and discrimination arising from disability. The tribunal awarded him £100,000. This was overturned by the EAT who concluded the tribunal got the law wrong as it had not considered the directing minds of those who had made the decisions, but instead of sending it back to be reheard, the EAT dismissed the claims as, based on the findings of fact, there was no reasonable prospect of success. Mr Dunn appealed to the Court of Appeal, accepting the tribunal got the law wrong but saying that the case should have been reheard.

Court of Appeal decision

Mr Dunn’s appeal was dismissed.

The court described the process as ‘unnecessarily bureaucratic’, a fact admitted by Mr Dunn’s employer. But this did not make it direct discrimination. The court agreed that it is the mindset of the decision maker in such situations which is crucial; in other words, did the fact of Mr Dunn’s disability operate on their minds so as to cause them to act, or fail to act, in the manner complained of?

If a claimant cannot show a discriminatory motivation on the part of the decision maker, he or she can only satisfy the ‘because of’ requirement in the legislation if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently Here, although the ill-health retirement process was inherently defective, it did not follow that it was inherently discriminatory.

Based on the findings of fact of the tribunal it was clear that no discriminatory motivation had been attributed and it was not a situation where it had not and, in the view of the EAT and as supported by the Court of Appeal, there would be no point in sending it back.

However, Mr Dunn’s counsel did try and argue the case in a different way, which was that Mr Dunn would not have been in the position he was, suffering delay and incompetence, if he were not ‘disabled’. This would be a claim of discrimination arising from disability. The court refused to allow this new argument to proceed as it had not been argued originally and the employer would have called additional evidence if it had been, not least on the question of justification. However, the court did not give a definitive answer on the point, leaving the door open for a similar argument to be advanced in other cases.

This decision confirms that there can be no direct discrimination or unfavourable treatment unless there is a causal link between the treatment and the protected characteristic (here Mr Dunn’s disability). If such a link cannot be established, employees can bring indirect discrimination claims instead. Mr Dunn did so in the tribunal, but it was dismissed and not appealed to the EAT.